Citation Nr: 0818545
Decision Date: 06/05/08 Archive Date: 06/12/08
DOCKET NO. 05-37 491 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to service connection for degenerative joint
disease, bilateral knees, with total knee replacement.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
B.W. Hennings, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1952 to
November 1954.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Boston,
Massachusetts, which denied the benefit sought on appeal.
FINDING OF FACT
The veteran's degenerative joint disease, bilateral knees,
with total knee replacement is not shown to be related to
active service.
CONCLUSION OF LAW
Degenerative joint disease, bilateral knees, with total knee
replacement was not incurred in or aggravated by active
military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.303 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Legal criteria
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from
disability resulting from an injury suffered or disease
contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in active military service. 38 U.S.C.A. § 1110; 38
C.F.R. § 3.303.
That an injury occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
History and analysis
Service medical records are negative for treatment, diagnosis
or complaint of any knee condition. The records do not
indicate that the veteran developed degenerative joint
disease of the knees until many years after discharge from
service. See 38 C.F.R. §§ 3.307, 3.309 (2007).
While the veteran has stated his belief that injuries to both
legs during service caused his degenerative joint disease,
bilateral knees, with total knee replacement (claimed as
bilateral knee condition), as a layperson he is not qualified
to furnish medical opinions or diagnoses. Espiritu v.
Derwinski, 2 Vet. App. 492, 494-495 (1992).
VA operative reports from 1996 show that the veteran had a
total right knee arthroplasty in September 1996. VA
operative reports from 1999 show that the veteran underwent a
total left knee arthroplasty in January 1999. Both reports
detailed the surgical procedures performed on the veteran's
knees.
A May 2004 VA examination report noted that the veteran's
legs reveal no residual from his gunshot wounds in 1953. The
examiner found that the gunshot wound suffered in Korea in
1953 was superficial and without residual scars. The
examiner also diagnosed degenerative joint disease involving
both knees for the past 20 years, finally resulting in
operative surgery in 1996 to the veteran's right knee, with a
total knee replacement to his left knee in 1999. A September
2004 VA examination report merely referred back to the May
2004 VA examination report.
An October 2005 VA examiner diagnosed degenerative arthritis
of right and left knee joints, with status post total joint
knee replacement of right and left knees. In addition, he
diagnosed residual subluxation and instability of multi-
operated right knee, following joint replacement. He further
diagnosed superficial healed gunshot wounds, right and left
lower extremities, without residual evidence of scar
formation. The examiner opined that the veteran's gunshot
wounds in 1952 were of a superficial nature and bore little
relationship to the development of the present degenerative
arthritis of both knees; therefore, the veteran's
degenerative joint disease, bilateral knees, with total knee
replacement was unrelated to his military service.
The record contains no evidence linking the veteran's
bilateral knee condition with service. Not only is there no
medical opinion evidence in support of the veteran's claim,
but there is also medical opinion evidence against the
veteran's claim.
As noted above, in October 2005 a VA physician opined that
the veteran's degenerative joint disease, bilateral knees,
with total knee replacement was unrelated to his military
service.
Accordingly, the Board concludes that the preponderance of
the evidence is against this claim. As the preponderance of
the evidence is against the claim, the benefit of the doubt
doctrine is not applicable, and the claim for service
connection for degenerative joint disease, bilateral knees,
with total knee replacement must be denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Duty to notify and assist
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in his or her possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). Notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005). The notice requirements
of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a "service connection" claim, defined to
include: (1) veteran status; (2) existence of a disability;
(3) a connection between the veteran's service and the
disability; (4) degree of disability; and (5) effective date
of the disability. See Dingess v. Nicholson, 19 Vet. App.
473 (2006).
By April 2004 and August 2004 letters the RO sent the veteran
the required notice. The letters specifically informed him of
the type of evidence needed to support the claim, who was
responsible for obtaining relevant evidence, where to send
the evidence, and what he should do if he had questions or
needed assistance. In this letter he was told, in essence,
to submit all pertinent evidence he had in his possession
pertaining to the claim. See Quartuccio v. Principi, 16 Vet.
App. 183 (2002). The Board acknowledges that the veteran was
not provided notice of the appropriate disability rating and
effective date of any grant of service connection. There is
no prejudice to the veteran in proceeding with the issuance
of a final decision despite VA's failure to provide the
specific notice required by Dingess, as his claim for service
connection is being denied. See Dingess, supra. Therefore,
issues concerning the degree of disability or the effective
date of an award do not arise here.
With respect to VA's duty to assist the veteran, the RO has
obtained the veteran's service medical records and VA medical
records. The veteran has been provided VA medical
examinations. The veteran has been accorded ample
opportunity to present evidence and argument in support of
the appeal. Neither the veteran nor his representative has
indicated that there are any additional pertinent records to
support the veteran's claim.
In sum, the Board is satisfied that the originating agency
properly processed the veteran's claim after providing the
required notice and that any procedural errors in the
development and consideration of the claim by the originating
agency were insignificant and non-prejudicial to the
veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
ORDER
Service connection for degenerative joint disease, bilateral
knees, with total knee replacement is denied.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs